G.R. No.

106518 March 11, 1999

ABS-CBN SUPERVISORS EMPLOYEES UNION MEMBERS, petitioner,

vs.
ABS-CBN BROADCASTING CORP., HERBERT RIVERA, ALBERTO BERBON, CINDY MUNOZ,
CELSO JAMBALOS, SALVADOR DE VERA, ARNULFO ALCAZAR, JAKE MADERAZO, GON
CARPIO, OSCAR LANDRITO, FRED GARCIA, CESAR LOPEZ and RUBEN
BARRAMEDA, respondents.

PURISIMA, J.:

At bar is a special civil action for Certiorari 1 seeking the reversal of the Order2 dated July 31, 1992 of public respondent
Department of Labor and Employment Undersecretary Bienvenido E. Laguesma3 in Case No. NCR -
OD-M -90 -07-037.

From the records on hand, it can be gathered, that:

On December 7, 1989, the ABS-CBN Supervisors Employees Union ("the Union"), represented by
respondent Union Officers, and ABS-CBN Broadcasting Corporation ("the Company") signed and
concluded a Collective Bargaining Agreement with the following check-off provision, to wit:

Art. XII — The [C]ompany agrees to advance to the Union a sum equivalent to 10%
of the sum total of all the salary increases and signing bonuses granted to the
Supervisors under this collective Bargaining Agreement and upon signing hereof to
cover the Union's incidental expenses, including attorney's fees and representation
expenses for its organization and (sic) preparation and conduct hereof, and such
advance shall be deducted from the benefits granted herein as they accrue.

On September 19, 1990, Petitioners4 filed with the Bureau of Labor Relations, DOLE-NCR, Quezon
City, a Complaint against the Union Officers5 and ABS-CBN Broadcasting corporation, praying that
(1) the special assessment of ten percent (10%) of the sum total of all salary increases and signing
bonuses granted by respondent Company to the members of the Union be declared illegal for failure
to comply with the Labor Code, as amended, particularly Article 241, paragraphs (g), (n), and (o);
and in utter violation of the Constitution and By-Laws of the ABS-CBN Supervisors Employees
Union; (2) respondent Company be ordered to suspend further deductions from petitioners' salaries
for their shares thereof.

In their Answers, respondent Union Officers and Company prayed for the dismissal of the Complaint
for lack of merit. They argued that the check-off provision is in accordance with law as majority of the
Union members individually executed a written authorization giving the Union officers and the
Company a blanket authority to deduct subject amount.

On January 21, 1991, Med-Arbiter Rasidali C. Abdullah issued the following Order:6

WHEREFORE, premises considered judgment is hereby rendered:

a) declaring the special assessment of 10% of the sum total of CBA benefits as
illegal;
 b) ordering respondents union officers to refund to the complainants and other union
members the amount of Five Hundred Thousand Pesos (P500,000.00) advanced by
the respondent Company as part of the 10% sum total of CBA benefits without
unnecessary delay;

c) ordering the respondent company to stop and desist from further making advances
and deductions from the union members' salaries their share in the advances already
made to the union;

d) ordering the respondent Company to remit directly to the complainants and other
union members the amount already deducted from the union members' salaries as
part of their share advances already made to the union and which it had kept in trust
during the pendency of this case; and

e) directing the respondents union officers and respondent Company to submit report
on the compliance thereof.

SO ORDERED.

On appeal, respondent DOLE Undersecretary Bienvenido E. Laguesma handed down a Decision7 on

July 1, 1991, disposing as follows:

WHEREFORE, the appeals are hereby denied, the Order of the Med-Arbiter is
affirmed en toto.

On July 5, 1991, the aforesaid Decision was received by the respondent Union Officers and
respondent Company. On July 13, 1991, they filed their Motion for Reconsideration stating, inter
alia that the questioned ten percent (10%) special assessment is valid pursuant to the ruling in Bank
of the Philippine Islands Employee Union - ALU vs. NLRC.8

On July 31, 1992, Undersecretary B. E. Laguesma issued an Order 9; resolving, thus:

WHEREFORE, the Decision dated 01 July 1991 is hereby SET ASIDE, In lieu
thereof, a new one is hereby entered DISMISSING the Complaint/Petition for lack of
merit.

Hence, the present petition seeking to annul and set aside the above-cited Order of public
respondent Undersecretary B. E. Laguesma, for being allegedly tainted with grave abuse of
discretion amounting to lack of jurisdiction.

Did the public respondent act with grave abuse of discretion in issuing the challenged Order
reversing his own Decision of July 1,1991? Such is the sole issue posited, which we resolve in the
negative. The petition is unmeritorious.

Petitioners claim10 that the Decision of the Secretary of Labor and Employment dated July 1, 1991,
affirming in totothe Order of Med-Arbiter Rasidali Abdullah dated January 31, 1991, cannot be a
subject of a motion for reconsideration because it is final and unappealable pursuant to Section 8,
Rule VIII, Book V of the Omnibus Rule Implementing the Labor Code. It is further argued that the
only remedy of the respondent Union Officers' is to file a petition for certiorari with this Court.

Sec. 8, Rule VIII, Book V of the Omnibus Rules Implementing the Labor Code, provides:
 The Secretary shall have fifteen (15) calendar days within which to decide the appeal
from receipt of the records of the case. The decision of the Secretary shall be final
and inappealable. [Underscoring supplied]. (Comment, p. 101)

The aforecited provision cannot be construed to mean that the Decision of the public respondent
cannot be reconsidered since the same is reviewable by writ of certiorari under Rule 65 of the Rules
of Court. As a rule, the law requires a motion for reconsideration to enable the public respondent to
correct his mistakes, if any. In Pearl S. Buck Foundation, Inc., vs. NLRC,11 this Court held:

Hence, the only way by which a labor case may reach the Supreme Court is through
a petition for certiorari under Rule 65 of the Rules of Court alleging lack or excess of
jurisdiction or grave abuse of discretion. Such petition may be filed within a
reasonable time from receipt of the resolution denying the motion for
reconsideration of the NLRC decision. [Emphasis supplied].

Clearly, before a petition for certiorari under Rule 65 of the Rules of Court may be availed of,
the filing of a motion for reconsideration is a condition sine qua non to afford an opportunity
for the correction of the error or mistake complained of.

So also, considering that a decision of the Secretary of Labor is subject to judicial review only
through a special civil action of certiorari and, as a rule, cannot be resorted to without the aggrieved
party having exhausted administrative remedies through a motion for reconsideration, the aggrieved
party, must be allowed to move for a reconsideration of the same so that he can bring a special civil
action for certiorari before the Supreme Court.12

Furthermore, it appears that the petitioners filed with the public respondent a Motion for Early
Resolution13 dated June 24, 1992, averring that private respondents' Motion for Reconsideration did
not contain substantial factual or legal grounds for the reversal of subject decision. Consequently,
petitioners are now estopped from raising the issue sought for resolution. In Alfredo Marquez vs.
Secretary of Labor 14 the Court said:

. . . The active participation of the party against whom the action was brought,
coupled with his failure to object to the jurisdiction of the court or quasi-judicial body
where the action is pending, is tantamount to an invocation of that jurisdiction and a
willingness to abide by the resolution of the case and will bar said party from later on
impugning the court or body's jurisdiction.

What is more, it was only when the public respondent issued the Order adverse to them that the
petitioners raised the question for the first time before this Court. Obviously, it is a patent
afterthought which must be abhorred.

Petitioners also argued that the check-off provision in question is illegal because it was never
submitted for consideration and approval to "all the members at a general membership meeting
called for the purpose"; and further alleged that the formalities mandated by Art. 241, paragraphs (n)
and (o) of the Labor Code, as amended, were not complied with.

"A check-off is a process or device whereby the employer, on agreement with the Union, recognized
as the proper bargaining representative, or on prior authorization from its employees, deducts union
dues or agency fees from the latter's wages and remits them directly to the union."15 Its desirability in
a labor organization is quite evident. It is assured thereby of continuous funding. As this Court has
acknowledged, the system of check-off is primarily for the benefit of the Union and only indirectly, for
the individual employees.
The legal basis of check-off is found in statutes or in contracts.16 The statutory limitations on check-
offs are found in Article 241, Chapter II, Title IV, Book Five of the Labor Code, which reads:

Rights and conditions of membership in a labor organization — The following are the
rights and conditions of membership in a labor organization:

xxx xxx xxx

(g) No officer, agent, or member of a labor organization shall collect any fees, dues,
or other contributions in its behalf to make any disbursement of its money or funds
unless he is duly authorized pursuant to its constitution and by-laws.

xxx xxx xxx

(n) No special assessement or other extraordinary fees may be leavied upon the
members of a labor organization unless authorized by a written resolution of a
majority of all the members of a general membership meeting duly called for the
purpose. The secretary of the organization shall record the minutes of the meeting
including the list of all members present, the votes cast, the purpose of the special
assessment or fees and the recipient of such assessment or fees. The record shall
be attested to by the president.

(o) Other than for mandatory activities under the Code, no special assessments,
attorney's fees negotiation fees or any other extraordinary fees may be checked off
from any amount due to an employee without an individual written authorization duly
signed by the employee. The authorization should specifically state the amount,
purpose and beneficiary of the deductions. [Emphasis; supplied]

Art. 241 of the Labor Code, as amended, must be read in relation to Article 222, paragraph (b) of the
same law, which states:

No attorney's fees, negotiation fees or similar charges of any kind arising from
collective bargaining negotiations or conclusion of the collective agreement shall be
imposed on any individual member of the contracting union: Provided, however, that
attorney's fees may be charged against union funds in an amount to be agreed upon
by the parties. Any contract, agreement or arrangement of any sort to the contrary
shall be null and void. [Emphasis; supplied]

And this court elucidated the object and import of the said provision of law in Bank of Philippine
Islands Employees Union - Association Labor Union (BPIEU-ALU) vs. National Labor Relations
Commission:17

The Court reads the afore-cited provision (Article 222 [b] of the Labor Code) as
prohibiting the payment of attorney's fees only when it is effected through forced
contributions from the workers from their own funds as distinguished from the union
funds. . . .

Noticeably, Article 241 speaks of three (3) requisites that must be complied with in order that the
special assessment for Union's incidental expenses, attorney's fees and representation expenses,
as stipulated in Article XII of the CBA, be valid and upheld namely: 1) authorization by a written
resolution of the majority of all the members at the general membership meeting duly called for the
purpose; (2) secretary's record of the minutes of the meeting; and (3) individual written authorization
for check-off duly signed by the employee concerned.

After a thorough review of the records on hand, we find that the three (3) requisites for the validity of
the ten percent (10%) special assessment for Union's incidental expenses, attorney's fees and
representation expenses were met.

It can be gleaned that on July 14, 1989, the ABS-CBN Supervisors Employee Union held its general
meeting, whereat it was agreed that a ten percent (10%) special assessment from the total
economic package due to every member would be checked-off to cover expenses for negotiation,
other miscellaneous expenses and attorney's fees. The minutes of the said meeting were recorded
by the Union's Secretary, Ma. Carminda M. Munoz, and noted by its President, Herbert Rivera. 18

On May 24, 1991, said Union held its General Membership Meeting, wherein majority of the
members agreed that "in as much as the Union had already paid Atty. P. Pascual the amount of
P500,000.00, the same must be shared by all the members until this is fully liquidated. 19

Eighty-five (85) members of the same Union executed individual written authorizations for check-off,
thus:

Towards that end, I hereby authorize the Management and/or Cashier of ABS-CBN
BROADCASTING CORPORATION to deduct from my salary the sum of P30.00 per
month as my regular union dues and said Management and/or Cashier are further
authorize (sic) to deduct a sum equivalent to10% of all and whatever benefits that will
become due to me under the COLLECTIVE BARGAINING AGREEMENT (CBA) that
may be agreed upon by the UNION and MANAGEMENT and to apply the said sum
to the advance that Management will make to our Union for incidental expenses such
as attorney's fees, representations and other miscellaneous expenses pursuant to
Article XII of the proposed CBA.20

Records do not indicate that the aforesaid check-off authorizations were executed by the eighty-five
(85) Union members under the influence of force or compulsion. There is, then, the presumption that
such check-off authorizations were executed voluntarily by the signatories thereto. Petitioner's
contention that the amount to be deducted is uncertain21 is not persuasive because the check-off
authorization clearly stated that the sum to be deducted is equivalent to ten percent (10%) of all and
whatever benefits may accrue under the CBA. In other words, although the amount is not fixed, it is
determinable.

Petitioners further contend that Article 241 (n) of the Labor Code, as amended, on special
assessments, contemplates a general meeting after the conclusion of the collective bargaining
agreement.

Subject Article does not state that the general membership meeting should be called after the
conclusion of a collective bargaining agreement. Even granting ex gratia argumenti that the general
meeting should be held after the conclusion of the CBA, such requirement was complied with since
the May 24, 1991 General Membership Meeting was held after the conclusion of the Collective
Bargaining Agreement, which was signed and concluded on December 7, 1989.

Considering that the three requisites afforesaid for the validity of a special assessment were
observed or met, we uphold the validity of the ten percent (10%) special assessment authorized in
Article XII of the CBA.
We also concur in the finding by public respondent that the Bank of the Philippine Islands
Employees Union - ALU vs. NLRC 22 is apposite in this case. In BPIEU-ALU, the petitioners,
impugned the Order of the NLRC, holding that the validity of the five percent (5%) special
assessment for attorney's fees is contrary to Article 222, paragraph (b) of the Labor Code, as
amended. The court ratiocinated, thus:

The Court reads the aforecited provision as prohibiting the payment of attorney's fees
only when it is effected through forced contributions from the workers from their own
funds as distinguished from the union funds. The purpose of the provision is to
prevent imposition on the workers of the duty to individually contribute their
respective shares in the fee to be paid the attorney for his services on behalf of the
union in its negotiations with the management. . . . [Emphasis supplied]

However, the public respondent overlooked the fact that in the said case, the deduction of the
stipulated five percent (5%) of the total economic benefits under the new collective bargaining
agreement was applied only to workers who gave their individual signed authorizations. The Court
explained:

. . . And significantly, the authorized deductions affected only the workers who
adopted and signed the resolution and who were the only ones from whose benefits
the deductions were made by BPI. No similar deductions were taken from the other
workers who did not sign the resolution and so were not bound by it. [Underscoring;
supplied]

While the court also finds merit in the finding by the public respondent that Palacol vs. Ferrer-
Calleja 23 is inapropos in the case under scrutiny, it does not subscribe to public respondent's reasoning — that Palacol should not be
retroactively applied to the present case in the interest of justice, equity and fairplay. 24 The inapplicability of Palacol lies in the fact that it has
a different factual milieu from the present case. In Palacol, the check-off authorization was declared invalid because majority of the Union
members had withdrawn their individual authorizations, to wit:

Paragraph (o) on the other hand requires an individual written authorization duly
signed by every employee in order that special assessment may be validly checked-
off. Even assuming that the special assessment was validly levied pursuant to
paragraph (n), and granting that individual written authorizations were obtained by
the Union, nevertheless there can be no valid check-off considering that the majority
of the Union members had already withdrawn their individual authorizations. A
withdrawal of individual authorization is equivalent to no authorization at all. . . .
[Emphasis; supplied]

In this case, majority of the Union members gave their individual written check-off
authorizations for the ten percent (10%) special assessment. And they have never withdrawn
their individual written authorizations for check-off.

There is thus cogent reason to uphold the assailed Order, it appearing from the records of the case
that twenty (20)25 of the forty-two (42) petitioners executed a Compromise Agreement 26 ratifying the
controversial check-off provision in the CBA.

Premises studiedly considered, we are of the irresistible conclusion and, so find, that the ruling
in BPIEU-ALU vs. NLRC that (1) the prohibition against attorney's fees in Article 222, paragraph (b)
of the Labor Code applies only when the payment of attorney's fees is effected through forced
contributions from the workers; and (2) that no deductions must be taken from the workers who did
not sign the check-off authorization, applies to the case under consideration.
WHEREFORE, the assailed Order, dated July 31, 1992, of DOLE Undersecretary B. E. Laguesma is
AFFIRMED except that no deductions shall be taken from the workers who did not give their
individual written check-off authorization. No pronouncement as to costs.

SO ORDERED.

Romero, Vitug, Panganiban and Gonzaga-Reyes, JJ., concur.